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The History of "Alimony"

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Copyright � 2001 The Fathers' Manifesto

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September 1, 2001



"By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-french a feme-covert, foemina viro co-operta, is said to be covert baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage."

"With respect to suits for alimony^ after a divorce a mensa et thoro ; as there is no court in Virginia which possesses jurisdiction in such cases, so, until there is such a court, there can be no room for suits of this nature ; unless, perhaps, the high-court of chancery should sustain them, as incidental to its equitable jurisdiction."

"The lust species of matrimonial causes is a consequence drawn from one of the species of divorce, that a mensa et thoro; which is the suit for alimony, a term which signifies maintenance: which suit, the wife, in case of separation, may have against her husband, if he neglects or refuses to make her an allowance suitable to their station in life. This is an injury to the wife, and the court Christian will redress it by assigning her a competent maintenance, and compelling the husband by ecclesiastical censures to pay it. But no alimony will be assigned in case of a divorce for adultery on her part; for as that amounts to a forfeiture of her dower after his death, it is also a sufficient reason why she should not be a partaker of his estate when living."

"In some few cases, divorces, where the marriages have not been incestuous, have, under the authority of special acts of assembly, passed for that express purpose, been prosecuted both in the general court, and in the high-court of chancery ; and in one instance the marriage was totally dissolved, and the petitioner, (at whose instance the act passed) was declared to every intent and purpose a. feme-sole. V. L. 1789, c. 79, This seems to have partaken of the nature of a divorce a vinculo matrimonii, in its consequences, rather than of one a. mensa et thoro, only. Two other acts may be found in our laws, similar in their nature....1790, c. 92. 1791, c. 58.


Except in such cases, a feme covert cannot sue at law, unless it be jointly with her husband, for she is deemed to be under the protection of her husband, and a suit respecting her rights must be with the assent and co-operation of her husband. (Mitf. Equity Pl., by Jeremy, 28; Edwards on Parties in Equity, 144, 153; Calvert on Parties, ch. 3, sec. 21, pp. 265, 274; 6 How.)

In the case of Burr v. Heath, (6 How. S. C. R., 228,) this court said, without any reference to the law of Louisiana: 'That the general rule was, when the wife complains of her husband, and asks relief against him, she must use the name [62 U.S. 582, 590]   of some other person in prosecuting the suit; but where the acts of the husband are not complained of, he would seem to be the most suitable person to unite with her in the suit. This is a matter of practice within the discretion of the court. It is sanctioned in Story's Equity Pleading, and by Fonblanque. The modern practice in England has adopted a different course, by uniting the name of the wife with a person other than her husband, in certain cases.'

Wetmore v. Markoe, 196 U.S. 68 (1904)

The precise question, therefore, is, Is such a judgment as the one here under consideration a debt within the meaning of the act? The mere fact that a judgment has been rendered does not prevent the court from looking into the proceedings with a view of determining the nature of the liability which has been reduced to judgment. Boynton v. Ball, 121 U.S. 457, 466, 30 S. L. ed. 985, 987, 7 Sup. Ct. Rep. 981. The question presented is not altogether new in this court. In the case of Audubon v. Shufeldt, 181 U.S. 577, 45 L. ed. 1010, 21 Sup. Ct. Rep. 736, Mr. Justice Gray, delivering the opinion of the court, said: [196 U.S. 68, 73] 'Alimony does not arise from any business transaction, but from the relation of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdicrion. Generally speaking, alimony may be altered by that court at any time, as the circumstances of the parties may require. The decree of a court of one state, indeed, for the present payment of a definite sum of money as alimony, is a record which is entitled to full faith and credit in another state, and may, therefore, be there enforced by suit. Barber v. Barber (1858) 21 How. 582, 16 L. ed. 226; Lynde v. Lynde (1901) 181 U.S. 183, 45 L. ed. 810, 21 Sup. Ct. Rep. 555. But its obligation in that respect does not affect its nature. In other respects, alimony cannot ordinarily be enforced by action at law, but only by application to the court which granted it, and subject to the discretion of that court. Permanent alimony is regarded rather as a portion of the husband's estate to which the wife is equitably entitled than as strictly a debt; alimony from time to time may be regarded as a protion of his current income or earnings; and the considerations which affect either can be better weighed by the court having jurisdiction over the relation of husband and wife than by a court of a different jurisdiction.'


U.S. Supreme Court

BARBER v. BARBER, 62 U.S. 582 (1858)

62 U.S. 582 (How.)


December Term, 1858

THIS was an appeal from the the District Court of the United States for the district of Wisconsin.

The facts in the case are stated in the opinion of the court. [62 U.S. 582, 583]   It was argued by Mr. Doolittle for the appellant upon a brief filed by Mr. Billinghurst and Mr. Doolittle, and by Mr. Brown upon a printed argument for the appellee.

The reporter would give these arguments in extenso, but for the circumstance that the points in the case are thoroughly examined in the opinion of the court and in the dissenting opinion of Mr. Justice Daniel.

Mr. Justice WAYNE delivered the opinion of the court.

We regard this as a suit for a wife brought on the equity side of the District Court of the United States for the district of Wisconsin, by her next friend, George Cronkhite, a citizen of the State of New York, against Hiram Barber, a citizen of the State of Wisconsin, to give the same validity to a judgment [62 U.S. 582, 584]   in that State which it has in the State of New York against the defendant for the payment of alimony to his wife, who has been divorced from him a mensa et thoro, with an allowance of alimony by a court, which had, when the decree was made, jurisdiction over the parties and the subject-matter.

We shall not have occasion to comment upon the relations of husband and wife in her uninterrupted coverture, nor will we discuss the general rights, obligations, or disabilities, of either, when they have been separated by a divorce a mensa et thoro.

Our first remark is-and we wish it to be remembered-that this is not a suit asking the court for the allowance of alimony. That has been done by a court of competent jurisdiction. The court in Wisconsin was asked to interfere to prevent that decree from being defeated by fraud.

We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony, either as an original proceeding in chancery or as an incident to divorce a vinculo, or to one from bed and board.

The record raises these inquiries: Whether a wife divorced a mensa et thoro can acquire another domiciliation in a State of this Union different from that of her husband, to entitle her, by her next friend, to sue him in a court of the United States having equity jurisdiction, to recover from him alimony due, and which he refuses to make any arrangement to pay; and whether a court of equity is not a proper tribunal for a remedy in such a case.

We will first direct our attention to the circumstances of the case, and will give them from the bill and answer, and from the testimony in the record.

Hiram Barber and Huldah Adeline Barber were married in the State of New York, in the year 1840, where his domicil then was, and continued to be until he left it for Wisconsin, which was soon after a decree had been given for a divorce a mensa et thoro between them, with an allowance of alimony to be paid by him. Her application for such a divorce was made by Cronkhite, her next friend, in the court of chancery for [62 U.S. 582, 585]   the fourth district of the State of New York, that court having jurisdiction of the subject-matter and over the parties.

The defendant appeared and resisted the application. The cause was heard on the pleadings and proofs. It resulted in a declaration by the chancellor that the defendant had been guilty of cruel and inhuman treatment of his wife, and of such conduct towards her as to render it unsafe and improper for her to cohabit with him; and that he had abandoned, neglected, and refused to provide for her. And it therefore decreed that the complainant and defendant be separated from bed and board forever; provided, however, that they might at any time thereafter, by their joint petition, apply to the court to have the decree modified or discharged; and that neither of the said parties shall be at liberty to marry any other person during the lifetime of the other party. The court then referred the cause to a master, to ascertain and report what should be allowed and to be paid by the defendant, or out of his estate, to Mrs. Barber, for her suitable support and maintenance. In pursuance of this decretal order and reference, the master made a report. The defendant filed exceptions to it. The cause was regularly brought to a hearing upon the defendant's exceptions. They were overruled, and a final decree was made in the cause. The language of the decree is, that the exceptions are overruled, and that the report of the master is absolutely confirmed. That for the suitable support and maintenance of Mrs. Barber, there should be allowed and paid to her by the defendant, or out of his estate, in quarterly instalments, the annual sum of three hundred and sixty dollars in each and every year; and that as it appeared he had not given to her any support in the interval between the filing of the bill in her behalf and the rendition of the decree, that the defendant should pay to her three hundred and sixty dollars a year in quarterly payments from the 1st day of July, 1844, that being the day when the bill was filed; and it was decreed that the sum of nine hundred and sixty dollars, being the alimony retrospectively due, should be paid forthwith by the defendant, and that the complainant should have execution therefor. It was further ordered, that the permanent alimony allowed and to become due after the [62 U.S. 582, 586]   1st of March, 1847, to which day alimony is above computed, should be paid by the defendant in quarterly payments on the 1st days of March, June, September, and December, in each year during the life of Mrs. Barber; and in case of its not being so paid, that the quarterly payments should bear interest as they respectively became due, and that execution might issue therefor toties quoties. The court then decreed that the permanent alimony allowed to Mrs. Barber was vested in her for her own and separate use, and as her own and separate estate, with full power to invest the same in a trustee or trustees, as she might think proper to appoint, with the power to dispose of the same by will or otherwise, from time to time during her life, or at her death, or either, as she may think proper, free from any control, claim, or interposition of the defendant. The said decree, with a taxed bill of costs in the suit, was signed and enrolled according to the form of the statute in such cases made and provided in the State of New York.

It is upon a transcript of all the papers in that suit, authenticated as the law requires it to be done, that the suit now before us was brought in the District Court of the United States for the district of Wisconsin.

The complainants aver in their bill that they are citizens of the State of New York, and that the defendant is a citizen of the State of Wisconsin. They then set out the proceedings of the court in New York, divorcing Mr. and Mrs. Barber from bed and board, with especial reference to the decree and the entire record of that suit, charging the defendant with not having paid any part of the alimony adjudged to Mrs. Barber; and that there was then due to her on that account the sum of four thousand two hundred and forty-two dollars and fifteen cents, with interest at seven per cent., that being the legal rate in the State of New York. The rest of the bill it is not necessary to state more particularly, than that it is a recital of a suit which had been brought upon the common-law side of the District Court of the United States for the county of Milwaukee, in the Territory of Wisconsin, for the amount of alimony due by the defendant; to the declaration in which he filed a demurrer, upon which a judgment was rendered in [62 U.S. 582, 587]   his favor, which was afterwards affirmed in the Supreme Court of the State, for the reason that the remedy for the recovery of alimony was in a court of chancery, and not at law. To this bill also the defendant demurred, on account of the case not being within the ordinary jurisdiction of a court of chancery, that the relief sought could only be had in the court of chancery in the State of New York, and that it did not appear that the complainants had exhausted the remedy which they had in New York. This demurrer was overruled, and the defendant was ordered to answer. He did so. He admits in his answer the legality and locality of his marriage with Mrs. Barber; the jurisdiction of the court in the divorce case; that a divorce had been decreed between them from bed and board, after contestation; and that by that decree he was subjected to the payment of alimony to the extent and in the way it is claimed in the bill he was then answering. He admits that he left the State of New York without having paid any part of it, or having made any arrangement to do so; alleging, however, that he had left real estate in New York, upon which no proceedings had been taken to make it liable to the decree against him for alimony. And he then goes on to state, that on the 19th day of April, 1852, he had filed his bill in the Circuit Court of the county of Dodge, in the State of Wisconsin, against Mrs. Barber, she then being his wife, to obtain a dissolution of the marriage contract between them, and that their marriage had been dissolved by a decree of that court, which is on record in the same. And he adds, that his wife by that decree became a feme sole; and being so, she could not sue by her next friend, and that her remedy was in a court of law. To this answer a general replication was filed. The cause was carried to a hearing upon the pleadings and proofs, and a decree was made, adjudging that five thousand nine hundred and thirty-six dollars and eighty cents is due from the defendant upon the alimony sued for, for principal and interest, to and prior to the time of filing the bill in this cause, and that the defendant should pay it, for the sole and separate support and maintenance of Mrs. Barber, together with the costs, to be taxed within ten days; and in default thereof, that execution should issue for the same [62 U.S. 582, 588]   It appears, from the testimony in the cause, that the defendant left the State of New York in a short time after the decree for the divorce and for alimony had been rendered, for the purpose of placing himself beyond the jurisdiction of the court which could enforce it, without having paid any part of the alimony due, or leaving any estate of any kind out of which it could be paid; for he gave no proof of any kind that he had real estate in the State of New York in support of that allegation in his answer.

It also appears, from the record, that the defendant had made his application to the court in Wisconsin for a divorce a rinculo from Mrs. Barber, without having disclosed to that court any of the circumstances of the divorce case in New York; and that, contrary to the truth, verified by that record, he asks for the divorce on account of his wife having wilfully abandoned him. It is not necessary for us to pass any opinion upon the legality of the decree, or upon its operation there or elsewhere to dissolve the vinculum of the marriage between the defendant and Mrs. Barber. It certainly has no effect to release the defendant there and everywhere else from his liability to the decree made against him in the State of New York, upon that decree being carried into judgment in a court of another State of this Union, or in a court of the United States, where the defendant may be found, or where he may have acquired a new domicil different from that which he had in New York when the decree was made there against him.

The questions made by the bill and the answer, and by the arguments of counsel, we will state in the form of an inquiry. They are as follows: Whether a wife divorced a mensa et thoro may not have a domiciliation in a State of this Union different from that of her husband in another State, to enable her to sue him there by her next friend, in equity, in a court of the United States, to carry into judgment a decree which has been made against him for alimony by a court having jurisdiction of the parties and the subject-matter of divorce?

In the consideration of these questions, we must not allow ourselves to be misled by the general rule which prevails in England, that a suit cannot be maintained at law by a feme [62 U.S. 582, 589]   covert, and that, notwithstanding a divorce a mensa et thoro, a wife cannot sue or be sued in a court of law; for in England she may in several cases maintain a suit in her own name as a feme sole, both at law and in equity. They are exceptions to the general rule, or privileged cases, under certain circumstances, where it cannot be presumed, from his own acts, that the husband's control of his wife is continued, and where she has been deprived of his protection to represent with her her rights and interests in a suit at law, or in one in equity. The cases mentioned in the books where a feme covert may sue as a feme sole are: When her husband is banished, or has abjured the realm, or has been transported for felony; where the husband is an alien enemy, and his wife is domiciled in the realm; where the husband is an alien domiciled abroad, and has never been in the realm; or where he has voluntarily abandoned her, and is under a disability to return; so where the husband has deserted the wife in a foreign country, and she goes to England and maintains herself as a feme sole; where the husband, in a foreign State, compels his wife to leave him for another political jurisdiction, and she maintains herself there as a feme sole.

Cases have been decided in Massachusetts in conformity with the English cases. There are cases in England which have gone much further, but we do not cite them, preferring only to mention such instances as have not been questioned by subsequent cases in England or in the United States . (See Story's Equity Pleading, 6th edition, sec. 61, pp. 59, 60, and the cases cited in the notes.)

Except in such cases, a feme covert cannot sue at law, unless it be jointly with her husband, for she is deemed to be under the protection of her husband, and a suit respecting her rights must be with the assent and co-operation of her husband. (Mitf. Equity Pl., by Jeremy, 28; Edwards on Parties in Equity, 144, 153; Calvert on Parties, ch. 3, sec. 21, pp. 265, 274; 6 How.)

In the case of Burr v. Heath, (6 How. S. C. R., 228,) this court said, without any reference to the law of Louisiana: 'That the general rule was, when the wife complains of her husband, and asks relief against him, she must use the name [62 U.S. 582, 590]   of some other person in prosecuting the suit; but where the acts of the husband are not complained of, he would seem to be the most suitable person to unite with her in the suit. This is a matter of practice within the discretion of the court. It is sanctioned in Story's Equity Pleading, and by Fonblanque. The modern practice in England has adopted a different course, by uniting the name of the wife with a person other than her husband, in certain cases.'

There are also exceptions in equity, which are wholly unknown at law. Thus, if a married woman claims some right in opposition to the rights claimed by the husband, and it becomes proper to vindicate her rights against her husband, she cannot maintain a suit against him at law; but in equity she may do so, and against all others who may be proper or necessary parties. But it must be done under the protection of some other person who acts as her next friend, and the bill is accordingly exhibited in her name by such next friend. (Story's Equity Pl., 6th ed., sec. 61, p. 61.) It is also said, in the same work, to be our constant experience, that the husband may sue the wife, or the wife the husband, in equity, notwithstanding neither of them can sue the other at law. (Cannel v. Buckle, 2 P. Will., 243, 244; Ex parte Strangeways, 3 Ark., 478; Fonblanque Eq., B. 1, ch. 2, sec. 6, note N; Brooks v. Brooks, Pre. Ch., 24; Mitford Pl., by Jeremy, 28.) These citations have been made to show the large jurisdiction which a court of equity has to secure the rights of married women, when it may be necessary to exert it with the assistance of the husband, or when he improperly interferes with them, so as to make it necessary for the wife to defend herself against his unwarranted claims to her property. The result of that jurisdiction now is, that the wife may, in all such instances, sue her husband by her next friend.

There is, too, another ground of jurisdiction in equity, just as certainly established as that is of which we have just spoken. It comprehends the case before us. It is, that courts of equity will interfere to compel the payment of alimony which has been decreed to a wife by the ecclesiastical court in England. Such a jurisdiction is ancient there, and the principal reason [62 U.S. 582, 591]   for its exercise is equally applicable to the courts of equity in the United States. It is, that when a court of competent jurisdiction over the subject-matter and the parties decrees a divorce, and alimony to the wife as its incident, and is unable of itself to enforce the decree summarily upon the husband, that courts of equity will interfere to prevent the decree from being defeated by fraud. The interference, however, is limited to cases in which alimony has been decreed; then only to the extent of what is due, and always to cases in which no appeal is pending from the decree for the divorce or for alimony. (Shaftoe v. Shaftoe, 7 Vesey, 171; Dawson v. Dawson, 7 Ves., 173; Haffey v. Haffey, 14 Ves., 261; Angier v. Angier, Pre. Ch., 497; Cooper's Eq. P., ch. 3, pp. 149, 150; Coglan v. Coglan, 1 Ves., p. 194; Street v. Street, 1 Turn. and Tapel, 322.)

The parties to a cause for a divorce and for alimony are as much bound by a decree for both, which has been given by one of our State courts having jurisdiction of the subject-matter and over the parties, as the same parties would be if the decree had been given in the ecclesiastical court of England. The decree in both is a judgment of record, and will be received as such by other courts. And such a judgment or decree, rendered in any State of the United States, the court having jurisdiction, will be carried into judgment in any other State, to have there the same binding force that it has in the State in which it was originally given. For such a purpose, both the equity courts of the United States and the same courts of the States have jurisdiction.

We observe, in confirmation of what has just been said, that the jurisdiction of the courts of the United States is derived from the Constitution, and from legislation in conformity with it. The first limitation by the latter upon the jurisdiction of the equity courts of the United States is, that no suit can be sustained in them, where a plain, adequate, and complete remedy may be had at law. The court has said: 'It is not enough that there is a remedy at law; it must be plain and adequate, or, in other words, as practical and efficacious to the ends of justice, and its prompt administration, as the remedy in equity. (Boyce's Ex'x v. Grundy, 3 Peters, 210; United States v. Row [62 U.S. 582, 592]   land, 4 Wh., 108; Osborn and the United States Bank, 9 Wh., 841, 842.) It is no objection to equity jurisdiction in the courts of the United States, that there is a remedy under the local law, for the equity jurisdiction of the Federal courts is the same in all of the States, and is not affected by the existence or nonexistence of an equity jurisdiction in the State tribunals. It is the same in nature and extent as the jurisdiction of England, whence it is derived.' (Livingston v. Story, 9 Peters, 632.) Such a suit for the enforcement of a decree for alimony as that before us is not an exception, unless the court has not jurisdiction over the parties, and the amount be not such as is required to bring it into this court by appeal.

We proceed to show that it has jurisdiction. The Constitution requires, to give the courts of the United States jurisdiction, that the litigants to a suit should 'be citizens of different States.' The objection in this case is, that the complainant does not stand in that relation to her husband, the defendant; in other words, it is a denial of a wife's right, who has been divorced a mensa et thoro, to acquire for herself a domiciliation in a State of this Union different from that of her husband in another State, to entitle her to sue him there by her next friend, in a court of the United States having equity jurisdiction, to recover from him alimony which he has been adjudged to pay to her by a court which had jurisdiction over the parties and the subject-matter of divorce, where the decree was rendered.

We have already shown, by many authorities, that courts of equity have a jurisdiction to interfere to enforce a decree for alimony, and by cases decided by this court; that the jurisdiction of the courts of equity of the United States is the same as that of England, whence it is derived. On that score, alone, the jurisdiction of the court in the case before us cannot be successfully denied.

But it was urged by the learned counsel who argued this cause for the defendant, that husband and wife, although allowed to live separately under a decree of separation a mensa et thoro, made by a State court having competent jurisdiction, are still so far one person, while the married relation continues [62 U.S. 582, 593]   to exist, that they cannot become at the same time citizens of different States, within the meaning of the Federal Constitution, and therefore the court below had no jurisdiction. It was also said, for the purpose of bringing suits for divorces, they may acquire separate residences in fact; but this is an exception founded in necessity only, and that the legal domicil of the wife, until the marriage be dissolved, is the domicil of the husband, and is changed with a change of his domicil.

Such, however, and not the views which have been taken in Europe generally, by its jurists, of the domicil of a wife divorced a mensa et thoro. They are contrary, too, to the generally-received doctrine in England and the United States upon the point.

In England it has been decided, that where the husband and wife are living apart, under a judicial sentence of separation, that the domicil of the husband is not the domicil of the wife. (English Law and Equity Reports, 9 vol., 598; 2 Robertson, 545.) When Mr. Philemore wrote his treatise upon the law of domicil, he said he was not aware of any decided case upon the question of the domicil of a wife divorced a mensa et thoro, but there can be little doubt, that in England, as in France, it would not be that of her husband, but the one chosen for herself after the divorce. In support of his opinion, he cites Pothier's Introd. aux Coutume, p. 4; Mercadie in his Commentary upon the French Code, vol. 1, p. 287; the French Code, tit. 111, art. 108; the Code Civile of Sardinia; and Cocher's Argument in the Duchess of Holsten's case, Ouvres, 1, 2, p. 223.

Mr. Bishop, in his Commentaries on the Law of Marriage and Divorce, has a passage so appropriate to the point we are discussing, that we will extract it entire. It is of the more value, too, because it comprehends the opinions entertained by eminent American jurists and judges in respect to the domicil of a wife divorced a mensa et thoro. He says, in discussing the jurisdiction of courts where parties sought a divorce abroad for causes which would have been insufficient at home, that 'it was necessary to settle a preliminary question, namely, whether for the purpose of a divorce suit the husband and wife can have separate domicils; that the general doctrine is fam liar, that [62 U.S. 582, 594]   the domicil of the wife is that of the husband. But it will probably be found, on examination, that the doctrine rests upon the legal duty of the wife to follow and dwell with the husband wherever he goes.

'If he commits an offence which entitles her to have the marriage dissolved, she is not only discharged thereby immediately, and without a judicial determination of the question, from her duty to follow and dwell with him, but she must abandon him, or the cohabitation will amount to a condonation, and bar her claim to the remedy. In other words, she must establish a domicil of her own, separate from her husband, though it may be, or not, in the same judicial locality as his. Courts, however, may decline to recognise such domicil in a collateral proceeding-that is, a proceeding other than a suit for a divorce. But where the wife is plaintiff in a divorce suit, it is the burden of her application, that she is entitled, through the misconduct of her husband, to a separate domicil. So when parties are already liviag under a judicial separation, the domicil of the wife does not follow that of the husband.' (Section 728.)

Chief Justice Shaw says, in Harlean v. Harlean, (14 Peck, 181, 185,) the law will recognise a wife as having a separate existence and separate interests and separate rights, in those cases where the express object of all proceedings is to show that the relation itself ought to be dissolved, or so modified as to establish separate interests, and especially a separate domicil and home. Otherwise the parties, in this respect, would stand upon a very unequal footing, it being in the power of the husband to change his domicil at will, but not in that of the wife.

The cases which were cited against the right of a wife, divorced from bed and board, to choose for herself a domicil, do not apply. (Donegal v. Donegal, in 1 Addam's Ecclesiastical Rep., pp. 8, 19.) That of Shachell v. Shachell, cited in Whitcomb v. Whitcomb, (9 Curtteis Ecclesiastical Rep., p. 352,) are decisions upon the domicil of the wife, when living apart from her husband by their mutual agreement, but not under decrees divorcing the wife from the bed and board of the husband. The leading case under the same circumstances is that [62 U.S. 582, 595]   of Warrender v. Warrender, (9 Bligh., 103, 104.) In that case, Lord Brougham makes the fact that the husband and wife were living apart by agreement, and not by a sentence of divorce, the foundation of the judgment. The general rule is, that a voluntary separation will not give to the wife a different domiciliation in law from that of her husband. But if the husband, as is the fact in this case, abandons their domicil and his wife, to get rid of all those conjugal obligations which the marriage relation imposes upon him, neither giving to her the necessaries nor the comforts suitable to their condition and his fortune, and relinquishes altogether his marital control and protection, he yields up that power and authority over her which alone makes his domicil hers, and places her in a situation to sue him for a divorce a mensa et thoro, and to ask the court having jurisdiction of her suit to allow her from her husband's means, by way of alimony, a suitable maintenance and support. When that has been done, it becomes a judicial debt of record against the husband, which may be enforced by execution or attachment against his person, issuing from the court which gave the decree; and when that cannot be done on account of the husband having left or fled from that jurisdiction to another, where the process of that court cannot reach him, the wife, by her next friend, may sue him wherever he may be found, or where he shall have acquired a new domicil, for the purpose of recovering the alimony due to her, or to carry the decree into a judgment there with the same effect that it has in the State in which the decree was given. Alimony decreed to a wife in a divorce of separation from bed and board is as much a debt of record, until the decree has been recalled, as any other judgment for money is. When it is not paid, the wife can sue her husband for it in a court of equity, as an incident of that condition which gave to her the right to sue him, by her next friend, for a divorce.

It was decided in the State of Massachusetts, as early as the year 1800, that there were circumstances under which it appears to be absolutely necessary for the wife to sue, as for the recovery of alimony. That case was the same, in its circumstances, as this with which we are dealing. The wife libelled [62 U.S. 582, 596]   for a divorce a mensa et thoro, on account of the extreme cruelty of her husband. The divorce was decreed; and the husband was ordered to pay to her alimony, in quarterly instalments. The wife afterwards brought an action against him for arrears. He demurred to the declaration; and judgment was given for her. (Wheeler v. Wheeler, 2 Dana, H. 310.)

The same has been held in other cases in that State. It is now established doctrine there, and in some of our other States. They hold that a decree for a divorce, with an allowance for alimony, is as much a judgment as if it had been obtained on the common-law side of the court.

Rogers, Justice, in Clark v. Clark, (6 Watts and Sergeant,) places the right to recover arrears of alimony on the ground that the husband, after the decree for a divorce was rendered, had withdrawn himself from the jurisdiction of the court, to prevent him from being forced by attachment to pay the alimony which had been decreed to the wife.

In the State of New York, a wife may file a bill against her husband for alimony; and it appearing that he had abandoned her without any support, and threatened to leave the State, the court, on the wife's petition, granted a writ of ne exeat res publica against him. (Denton v. Denton, 1 J. C., 2, 364.)

In South Carolina, where the court, having no power to grant divorces, decreed to a wife alimony, on her bill praying for that remedy only, and ordered the husband to give security for its payment, the sheriff, having taken him into custody, suffered him to escape; it was held that the wife might maintain, by her next friend, an action at law against the sheriff for the escape. Smith, Justice, said: 'It had been urged in the argument that this woman, being a feme covert, could not maintain the action by her next friend. If that argument were to prevail, there would be a failure of justice, which our law abhors, as there would be no means of enforcing a decree of a wife against her husband for alimony. The court of equity could order a refractory husband to be attached, and the sheriff would let him go, if he thought proper; then, if the wife could not sue by her next friend, who could? The law provides no other course. And, upon this occasion, I would adopt the course [62 U.S. 582, 597]   of a very learned judge, 'if there is no precedent, I will make one."

In Ohio, a wife divorced a mensa et thoro may maintain ejectment for a lot of land, the use of which was allowed to her as alimony. In Virginia, it was said, in Purcell v. Purcell, (4 Hen. and Mansf., 507,) that the court of chancery has jurisdiction in all cases of alimony. In Maryland, the high court of chancery, from the earliest colonial times, exercised the jurisdiction to decree alimony, but not to grant divorces.

This was done under the belief that it belonged to the high court of chancery, in the absence of ecclesiastical tribunals; and in 1777 an act of Assembly provided that the chancellor shall and may hear and determine all causes for alimony, in as full and ample a manner as such causes could be heard and determined by the laws of England, in the ecclesiastical courts there.

Under that statute, alimony is granted to the wife whenever the English courts would be authorized to render a divorce from bed and, board; but the court has no power to extend the remedy, and decree a divorce also.

The inherent jurisdiction of a court of equity to decree alimony has also been acknowledged in Alabama. In North Carolina, bills of equity by the wife against the husband, praying alimony, were sustained, from an early day, without question as to the lawfulness of the jurisdiction.

Where such a decree has been made, whether done as an inherent power in equity to grant a decree for alimony, or as an auxiliary to enforce the payment of it as an incident of a divorce a mensa et thoro, there are no decisions, either in the English or American books, denying the wife's right to sue her husband for arrears of alimony due, by her next friend.

In some of the States she may do so, without the intervention of her next friend; but she cannot do that, as has been said before, in the courts of the United States having equity jurisdiction.

We think also that the cases which have been cited in this opinion are sufficient to show, whatever may have been the doubts in an earlier day, that a wife under a judicial sentence [62 U.S. 582, 598]   of separation from bed and board is entitled to make a domicil for herself, different from that of her husband, and that she may by her next friend sue her husband for alimony, which he had been decreed to pay as an incident to such divorce, or when it has been given after such a decree by a supplemental bill. In our best reflections, we have been unable to come to a different result. The privileges allowed to a wife under such circumstances rest upon the facts that the separation is only grantable propter Saevitiam; that the alimony commonly allowed is no more than enough to give her a home and a scanty maintenance, almost always necessarily short of that from which her husband has driven her; and that as a consequence she should be permitted to change her domicil, where she may live upon her narrow allowance with most comfort and the least mortification. Her right to sue her husband, by her next friend, for alimony already decreed, rests upon higher considerations, or upon legal principles which have been so well expressed by Chief Justice Shaw, as to her right to sue in the State of Massachusetts, that we will use his language, deeming it to be applicable in any other State in the American Union:

'After such a divorce, the law of this Commonwealth recognises her right to acquire and hold property, to take her own earnings to her own use, for the maintenance of herself and her children. She is deprived of the protection, and exempted from the control, of her husband. She may by the decree of the court granting the divorce, and pursuant to the provision of the statute law of the Commonwealth, be charged with the custody, and consequently with the support and maintenance, of the children of the marriage. The reason, therefore, why a wife cannot sue or be sued without joining or being joined with her husband, does not exist. The relation in which the divorce a mensa et thoro places the parties opposes a joinder. If it were necessary to join the husband as plaintiff, he might release her rights, by which she would be subjected to costs; if he might be joined as defendant, he might be made subject to her debts; both of which consequences are repugnant to the true relation of divided and separate interests, in which the law by such a decree places them. Whilst the law thus recognises [62 U.S. 582, 599]   the right of a woman so divorced to acquire and take the proceeds of her industry to her own use, it recognises her power to make contracts; and if she could not sue and be sued, it would present the anomalous case in which the law recognises a right without affording a remedy for vindicating it, and subjects a party to a duty without lending its aid to enforce it.'

We do not deem it necessary to show, further than it has already been done in this opinion, that the equity side of the court was the appropriate tribunal for this cause. We have, however, verified the correctness and applicability of several of the cases cited in his argument by the counsel of the complainant to sustain that point, and deem them decisive.

The only point remaining for our determination is that which questions the complainant's right to pursue her remedy in the equity side of the District Court of the United States in the State of Wisconsin.

The facts are, that she married the defendant in the States of New York, the State then of her husband's domicil; that they lived there until the decree of separation was made; that she has retained it ever since as her domicil, but that the defendant, after the decree of separation was given, left her domicil in New York for another in the State of Wisconsin, in which he says that he has acquired a domicil. The complainant comes into court in the character of citizen of the State of New York. Mrs. Barber is recognised to be such by the laws of that State, and her status as a divorced woman a mensa et thoro by a court of competent jurisdiction in New York, and the rights of citizenship which she has under it there, are decisive of her right to sue in the courts of the United States, as that has been done in this instance. The citizenship of the defendant is admitted and claimed by him to be in the State of Wisconsin. His voluntary change of domicil from New York to Wisconsin makes him suable there. That might have been done in a State court in equity as well as in the District Court of the United States; but she had a right to pursue her remedy in either. She has chosen to do so in a court of the United States, which has jurisdiction over the subject-matter of her claim to the same extent that a court of equity of a State has, and we think that the [62 U.S. 582, 600]   court below has not committed error in sustaining its jurisdiction over this cause, nor in the decree which it has made. We affirm the decree of that court, and direct a mandate to be issued accordingly.

Mr. Chief Justice TANEY, Mr. Justice DANIEL, and Mr. Justice CAMPBELL, dissented.


Mr. Justice DANIEL:

From several considerations, which to me appear essentially important, I am constrained to differ in opinion with the majority of the court in this case.

1. With respect to the authority of the courts of the United States to adjudicate upon a controversy and between parties such as are presented by the record before us. Those courts, by the Constitution and laws of the United States, are invested with jurisdiction in controversies between citizens of different States. In the exercise of this jurisdiction, we are forced to inquire, from the facts disclosed in the cause, whether during the existence of the marriage relation between these parties the husband and wife can be regarded as citizens of different States? Whether, indeed, by any regular legal deduction consistent with that relation, the wife can, as to her civil or political status, be regarded as a citizen or person?

By Coke and Blackstone it is said: 'That by marriage, the husband and wife become one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated or consolidated into that of the husband, under whose wing and protection she performs everything. Upon this principle of union in husband and wife, depend almost all the rights, duties, and disabilities, that either of them acquire by the marriage. For this reason, a man cannot grant anything to his wife, nor enter into a covenant with her, for the grant would be to suppose her separate existence, and to covenant with her would be only to covenant with himself; and therefore it is generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage.' (Co. Lit., 112; Bla. Com., vol. [62 U.S. 582, 601]   1, p. 442.) So, too, Chancellor Kent, (vol. 2, p. 128:) 'The legal effects of marriage are generally deducible from the principle of the common law, by which the husband and wife are regarded as one person, and her legal existence and authority in a degree lost and suspended during the existence of the matrimonial union.'

Such being the undoubted law of marriage, how can it be conceived that pending the existence of this relation the unity it creates can be reconciled with separate and independent capacities in that unity, such as belong to beings wholly disconnected, and each sui juris? Now, the divorce a mensa et thoro does not sever the matrimonial tie; on the contrary, it recognises and sustains that tie, and the allowance of alimony arises from and depends upon reciprocal duties and obligations involved in that connection. The wife can have no claim to alimony but as wife, and such as arises from the performance of her duties as wife; the husband sustains no responsibilites save those which flow from his character and obligations as husband, presupposing the existence and fulfilment of conjugal obligations on the part of the wife. It has been suggested that by the regulations of some of the States a married woman, after separation, is permitted to choose a residence in a community or locality different from that in which she resided anterior to the separation, and different from the residence of the husband. It is presumed, however, that no regulation, express or special, can be requisite in order to create such a permission. This would seem to be implied in the divorce itself; the purpose of which is, that the wife should no longer remain sub polestate viri, but should be freed from the control which had been abused, and should be empowered to select a residence and such associations as would be promotive of her safety and her comfort. But whether expressed in the decree for separation, or implied in the divorce, such a privilege does not destroy the marriage relation; much less does it remit the parties to the position in which they stood before marriage, and create or revive ante-nuptial, civil, or political rights in the wife. Both parties remain subject to the obligations and duties of husband and wife. Neither can marry during the [62 U.S. 582, 602]   lifetime of the other, nor do any act whatsoever which is a wrong upon the conjugal rights and obligations of either. From these views it seems to me to follow, that a married woman cannot during the existence of the matrimonial relation, and during the life of the husband the wife cannot be remitted to the civil or political position of a feme sole, and cannot therefore become a citizen of a State or community different from that of which her husband is a member.

2. It is not in accordance with the design and operation of a Government having its origin in causes and necessities, political, general, and external, that it should assume to regulate the domestic relations of society; should, with a kind of inquisitorial authority, enter the habitations and even into the chambers and nurseries of private families, and inquire into and pronounce upon the morals and habits and affections or antipathies of the members of every household. If such functions are to be exercised by the Federal tribunals, it is important to inquire by what rule or system of proceeding, or according to what standard, either of ethics or police, they are to be enforced. Within the range subjected to the political, general, and uniform control of the Federal Constitution, there are numerous commonwealths, and within these are ordinances much more numerous and diversified, for the definition and enforcement of the duties of their respective members. Now, to which of these ordinances, or to which of these various systems of regulation, will the Federal authorities resort as a source of jurisdiction, or as a rule of decision, especially when it is borne in mind that it is only between members of different communities, persons legitimately subject to such separate rules of obligation or policy, that the tribunals of the Federal Government have cognizance; when, too, it is recollected that the Federal Government is clothed with no power to execute the laws of the States. The Federal tribunals can have no power to control the duties or the habits of the different members of private families in their domestic intercourse. This power belongs exclusively to the particular communities of which those families form parts, and is essential to the order and to the very existence of such communities. [62 U.S. 582, 603]   It has been suggested, that by the decree for separation a mensa et thoro, the husband and wife have become citizens of different States, and that the allowance to the wife is in the nature of a debt, which, as a citizen of a different State, she may enforce against the husband in the Federal courts. This suggestion, to my mind, involves two obvious fallacies. The first is the assumption, that by the decree the wife is made a citizen at all, or a person sui juris, whilst yet she is wife, still bound by her conjugal obligations, the faithful observance of which, on her part, is the foundation of her claim to maintenance as wife, and which claim she would forfeit at any time by a violation of these obligations. Indeed, the form of her application is an acknowledgment that she is not sui juris, and not released from her conjugal disabilities and obligations, for she sues by prochein ami.

The second error in the position before mentioned is shown by the character and objects of the allowance made as alimony to a wife. This allowance is not in the nature of an absolute debt. It is not unconditional, but always dependent upon the personal merits and conduct of the wife-merits and conduct which must exist and continue, in order to constitute a valid claim to such an allowance. This allowance might unquestionably be forfeited upon proof of criminality or misconduct of the wife, who would not be permitted to enforce the payment of that to which it should be shown she had lost all just claim; and this inhibition, it is presumed, might embrace as well a portion of that allowance at any time in arrears, as its demand in future. The essential character, then, of this allowance, viz: its being always conditional and dependent, both for its origin and continuation, upon the circumstances which produced or justified it, is demonstrative of the propriety and the necessity of submitting it to the control of that authority whose province it was to judge of those circumstances. That authority can exist nowhere but with the power and the right to control the private and domestic relations of life. The Federal Government has no such power; it has no commission of censor morum over the several States and their people.

But, irrespective of the disability of the wife as a party, I [62 U.S. 582, 604]   hold that the courts of the United States, as courts of chancery, cannot take cognizance of cases of alimony.

It has been repeatedly ruled by this court, that the jurisdiction and practice in the courts of the United States in equity are not to be governed by the practice in the State courts, but that they are to be apprehended and exercised according to the principles of equity, as distinguished and defined in that country from which we derive our knowledge of those principles. Such is the law as announced in the cases of Robenson v. Campbell, (3 Wheaton, 212;) of the United States v. Howland , (4 Wheaton, 108;) of Boyle v. Zacharie & Turner, (6 Peters, 648.) It is repeated in the cases of Story v. Livingston, (13 Peters, 359,) and of Gaines v. Relf, (15 Peters, 9.) Now, it is well known that the court of chancery in England does not take cognizance of the subject of alimony, but that this is one of the subjects within the cognizance of the ecclesiastical court, within whose peculiar jurisdiction marriage and divorce are comprised. Of these matters, the court of chancery in England claims no cognizance. Upon questions of settlement or of contract connected with marriages, the court of chancery will undertake the enforcement of such contracts, but does not decree alimony as such, and independently of such contracts.

In Roper on the Law of Baron and Feme, (vol. 2, p. 307,) it is stated that Lord Loughborough, in a case in 1 Vesey, jun., 195, is reported to have said, that if a wife applied to the court of chancery upon a supplicavit for security of the peace against her husband, and it was necessary that she should live apart as incidental to that, the chancellor will allow her separate maintenance. That this passage has been quoted by Sir William Grant in 10 Ves., 397, and that the same opinion was advanced in the case of Lambert v. Lambert, (2 Brown's Parliamentary Cases, p. 26.) 'But,' continues this writer, 'there seems to be no reported instance of such a jurisdiction, and it would be inconsistent with the object and form of the writ of supplicavit;' and he concludes with the position that 'the wife can only obtain a separate maintenance in the ecclesiastical courts where alimony is decreed to be paid during the pendency of any suit between husband and wife, and after its [62 U.S. 582, 605]   termination, if it ends in a sentence of separation on the ground of the husband's misconduct.'

From the above views, it would seem to follow, inevitably, that as the jurisdiction of the chancery in England does not extend to or embrace the subjects of divorce and alimony, and as the jurisdiction of the courts of the United States in chancery is bounded by that of the chancery in England, all power or cognizance with respect to those subjects by the courts of the United States in chancery is equally excluded.

It has been said that, there being no ecclesiastical court in the United States, many of the States have assumed jurisdiction over the subjects of divorce and alimony, through the agency of their courts of equity. The answer to this suggestion is, first, that it concedes the distinction between the character and powers of these different tribunals. In the next place, it may have been that the jurisdiction exercised by the State courts may have been conferred by express legislative grant; or it may have been assumed by those tribunals, and acquiesced in from considerations of convenience, or from mere toleration; but whether expressly conferred upon the State courts, or tacitly assumed by them, their example and practice cannot be recognised as sources of authority by the courts of the United States. The origin and the extent of their jurisdiction must be sought in the laws of the United States, and in the settled rules and principles by which those laws have bound them.


U.S. Supreme Court

LAING v. RIGNEY, 160 U.S. 531 (1896)

160 U.S. 531

No. 79.

January 13, 1896. [160 U.S. 531, 532]   This was an action brought on August 4, 1887, in the supreme court of the state of New York, against Thomas G. Rigney, on a final decree of the court of chancery of the state of New Jersey, whereby had been awarded to Ella L. Rigney, now Ella L. Laing, certain costs, counsel fees, and alimony, as well as a decree of divorce.

The action was tried at a special term of the supreme court, before a judge without a jury, and resulted in a judgment dismissing the complaint. An appeal was taken to the general term of the supreme court, and there the judgment of the special term was reversed. From the judgment of the general term on appeal was taken to the court of appeals of the state of New York, which court reversed the judgment of the general term, and affirmed that of the special term. 127 N. Y. 412, 28 N. E. 405. This decision of the court of appeals was duly remitted to the supreme court, and a judgment in accordance therewith with was entered November 4, 1891, which, by a writ of error, has been brought to this court.

It appears that these parties were married in the state of New York on February 12, 1873, and continued to reside in that state until January, 1877, when they removed to the city of Elizabeth, in the state of New Jersey. They had two children, a girl and a boy, who were 14 and 11 years old, respectively, at the time of the trial. In January, 1883, the defendant ceased to support his family, and subsequently abandoned his family.

On April 23, 1883, she, then being a resident of the state of New Jersey, filed a bill against the defendant in the court of chancery of that state, wherein she alleged that the defend- [160 U.S. 531, 533]   ant, whose legal residence was still in the city of Elizabeth, had committed adultery with several persons on different occasions in the city of New York, and prayed for an absolute divorce and for alimony. On August 4, 1883, the defendant appeared in the suit, by his solicitors and counsel, and filed an answer denying the allegations of adultery in the bill.

On May 18, 1886, the plaintiff filed a supplemental bill in the divorce suit, wherein she alleged that the defendant had committed adultery with a person named, in the city of New York, at various times since the commencement of the suit, and prayed that she might have the same relief against the defendant 'as she might have had if the facts stated and charged by way of supplement had been stated in the original bill,' and that the marriage be dissolved, and a suitable allowance made to her as alimony.

On April 29, 1887, an order was made by the chancellor of New Jersey, reciting the appearance and answer of the defendant to the original bill, the filing of the supplemental bill, the issuing of a subpoena thereon, and that, the defendant residing out of the state of New Jersey, process could not be served upon him, and directing that the defendant appear and plead, demur, or answer to the supplemental bill on or before May 18, 1887, or that, in default thereof, such decree be made against him as the chancellor should deem equitable and just, and further directing that a copy of the order, with a certified copy of the supplemental bill, should, within five days thereafter, be served upon the defendant personally, or, in default of such service, that notice of the order be published as therein directed. On May 4, 1887, a copy of this order and of the supplemental bill were served on the defendant personally in the city of New York.

On May 19, 1887, an order was made by the chancellor, reciting that due notice of the order of the court of April 29th, directing the defendant to appear and answer the said bill on or before May 18th, had been duly served, with a copy of the supplemental bill, 'as in said order and by the rules of this court directed and prescribed,' and that the defendant had not answered the same within the time limited by law [160 U.S. 531, 534]   and said order, and referring the case to a special master to ascertain and report, on evidence, as to the truth of the allegation of the said bill, and his opinion thereon.

On June 10, 1887, the special master reported to the court that all material facts charged in the bill and supplemental bill were true, and that a decree of divorce should be granted as prayed for.

On June 11, 1887, a final decree was rendered by the chancellor, confirming the report, granting a divorce, and awarding costs, counsel fees, and alimony. The decree found 'that the said defendant has been guilty of the crime of adultery charged against him in the said bill of complaint and the supplemental bill thereto,' and it was 'ordered, adjudged, and decreed that the said complainant, Ella L. Rigney, and the said defendant, Thomas G. Rigney, be divorced from the bond of matrimony for the cause aforesaid, and the marriage between them is hereby dissolved accordingly, and the said parties are hereby freed and discharged from the obligations thereof.' It was further adjudged and decreed that the custody of the children be awarded to the plaintiff, and that the defendant pay alimony pendente lite at the rate of $100 per month 'from the filing of the bill up to the date of this order,' and thereafter at the rate of $45 per week, together with the costs of the suit, and the sum of $150 for counsel fees.

It appears, by the record, that in January, 1888, shortly before the trial of the present case, which occurred in April, 1888, the defendant, by the solicitor who had appeared for him and filed his answer to the original bill in the divorce suit, applied for and obtained from the chancellor an amendment of the decree of June 11, 1887, by striking out from the recitals thereof the words 'bill of complaint and the,' and 'thereto,' so as to make the recital read, 'and that the said defendant has been guilty of the crime of adultery charged against him in said supplemental bill.' In other respects the amended decree was precisely the same as the original, and, as amended, was enrolled by the procurement and at the cost of the defendant. [160 U.S. 531, 535]   As already stated, on Ausust 4, 1887, Mrs. Rigney brought this action in the supreme court of New York upon the final decree of the court of chancery of New Jersey, to recover the amount awarded by the decree for alimony and costs, no part of which had been paid. The complaint, served December 3, 1887, set forth the proceedings and final decree of June 11, 1887, as they are above stated, and it further alleged that the defendant, accepting the force of the decree of the New Jersey court, had on September 18, 1887, married one Abbie Ahern. The complaint also alleged that on or about May 4, 1887, a copy of the said supplemental bill and a copy of the order for publication thereof were duly served upon the defendant, in the city of New York, by the delivery thereof to him personally.

The defendant, in his answer admitted 'the making of the order of May 2, 1887, and the service thereof and of the supplemental bill upon him,' but alleged that, as said service was made in the state of New York, and not in the state of New Jersey, the court of chancery of New Jersey, by such service, obtained no jurisdiction to make any personal decree against him on the supplemental bill. The terms of the answer, in this particular, were as follows:

'This defendant denies that said court of chancery of New Jersey ever obtained jurisdiction of the person of this defendant under said supplemental bill, or had any power to enter a personal decree against him, and he denies that such decree, so far as it is a personal decree against this defendant, is of any validity or effect, but he admits that said decree was effectual to dissolve the marriage status existing between him and the plaintiff.'

The answer admitted the truth of the allegations of the complaint that the defendant, acting on the assumption of the validity of the decree of divorce, had, on September 18, 1887, married another woman, and that said marriage had been solemnized in the state of New Jersey and also in the state of New York.

J. Hubley Ashton, for plaintiff in error. [160 U.S. 531, 536]   Hamilton Wallis, for defendant in error.

[160 U.S. 531, 539]  

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.

The federal question presented by this record is whether the judgment of the New York courts, in dismissing plaintiff's complaint, which sought to enforce a final decree of the court of chancery of New Jersey, gave due effect to the provisions of article 4 of the constitution of the United States, which require that full faith and credit shall be given in each state to the judicial proceedings of every other state.

The record discloses, and it is conceded, that, upon its face, the decree of the court of chancery of New Jersey purports to be a final decree, granting the divorce, and adjudging the payment of the costs and alimony to recover which this suit was brought.

But the defendant seeks to avail himself of the well-settled doctrine that it is competent for a defendant, when sued in the court of his domicile on a judgment obtained against him in another state, to show that the court of such other state had not jurisdiction to render the judgment against him. To sustain this position in this court, the defendant relies upon the sixth finding of the trial court, which was as follows: 'That the above-named defendant was never served with process in New Jersey under said supplemental bill, and never appeared therein or answered thereto, and the decree of the court of chancery of New Jersey, which was based entirely upon charges of adultery contained in said supplemental bill, did not, under the laws of that state, become binding upon said defendant personally.'

It is undoubtedly true, as claimed by the defendant in error, [160 U.S. 531, 540]   that if the judgment of the court of chancery of New Jersey was not binding upon the defendant therein personally in that state, no such force could be given to it in the state of New York; and it is contended that as, by the sixth finding above recited, it is found that the decree was not binding personally on the defendant, under the laws of New Jersey, the court of appeals of the state of New York and this court must accept and cannot review such finding. And upon that finding the court of appeals said:

'The trial court found upon undisputed evidence that, under the law of New Jersey and the practice of its court of chancery, jurisdiction to renders a judgment for alimony and costs on the supplemental bill, enforceable in that state against the defendant, could not be acquired without service of a new subpoena in the state, or by his appearance in the action subsequent to the filing of the supplemental bill. ... Service within the state was found to be, under the law and practice of the court of chancery of New Jersey, an indispensable prerequisite to the rendition of a personal judgment.' Rigney v. Rigney, 127 N. Y. 412, 28 N. E. 405.

The plaintiff duly excepted to the findings and conclusions, and it is well settled that exceptions to alleged findings of facts, because unsupported by evidence, present questions of law reviewable in courts of error.

The only evidence adduced by the defendant to sustain his side of the issue as to the law in the state of New Jersey was the testimony of Daniel M. Dickinson, an attorney and counselor at law of the supreme court of the state of New Jersey, and who had been employed for some years as chief clerk in the chancellor's office. This witness testified that, under the law and practice of New Jersey, a supplemental bill was, as to the matter not alleged in the original bill, an independent proceeding, and that, if there were no service of the subpoena issued under the supplementary bill and no appearance, the defendant would, as to the new matter contained in the supplementary bill, not be in court; but the same witness testified that there was no statute of New Jersey in terms requiring the issuing of a subpoena on any supplemental bill, nor was [160 U.S. 531, 541]   he able to specify any New Jersey statute which, in his opinion, required such process to be issued on a supplemental bill in any suit in the court of chancery of that state, nor could he cite any judicial decision in that state holding such process to be necessary. He also testified that 'by the practice in New Jersey, if the decree contains the fact that he was served, prima facie he was; if it does not, why, then there is no decree binding him personally. But so long as the decree stands against him in our state, why, of course, it is a good decree.' He also stated that the statute conferring jurisdiction upon the court of chancery is in the revision of the New Jersey laws under the head of 'Chancery Acts.'

The plaintiff put in evidence so much of the revision as related to the court of chancery, and which disclosed no provision whatever requiring a new subpoena to be issued on any supplementary bill filed in the court of chancery, but it does contain provisions with orders directing absent defendants, whether within or without the state, to respond to the bill; and, on proof of personal service of such order, the chancellor may proceed to take evidence to substantiate the bill, and to render such decree as the chancellor shall think equitable and just, and that any defendant upon whom such notice is served shall be bound by the decree in such cause as if he were served with process within the state. Revision N. J. 1877, p. 104.

As the defendant's only expert witness testified that the rules and regulations of the chancery court were to be found in the statutes, it would seem at least questionable whether his opinion upon the question as to how and when that court acquires jurisdiction over a defendant in an original or supplemental bill was competent evidence in the case. At all events, we do not read his testimony as alleging that where the court has already acquired jurisdiction over a defendant by personal service within the state, and then, after appearance by counsel, the defendant absents himself from the state, and when a supplemental bill is filed in the suit, service on him of a new subpoena within the state is an indispensable prerequisite to the rendition of a personal decree on such supplemental bill. [160 U.S. 531, 542]   And when asked directly by defendant's counsel whether such a decree would be effectual in New Jersey to bind the defendant personally, he answered, 'I have never known any case decided in New Jersey upon that point.'

In the absence of any statutory direction on the subject, and of any reported decision of the supreme court of that state, we are justified in finding the law to be as declared in the very case in hand, where the chancellor of the chancery court of New Jersey has entered a final decree based upon an original bill, the process under which was served upon the defendant within the state, and upon a supplemental bill, a copy of which, with a rule to plead, was served upon the defendant without the state. So long as this decree stands it must be deemed to express the law of the state. If the defendant deemed himself aggrieved thereby, his remedy was by an appeal.

In Cornett v. Williams, 20 Wall. 226, where, in a circuit court of the United States, an attempt was made to destroy the effect of a judgment rendered by a county court by alleging error, this court said:

'The power to review and reverse the decision so made is clearly appellate in its character, and can be exercised only by an appellate tribunal in a proceeding directly had for that purpose. It cannot and ought not to be done by another court, in another case, where the subject is presented incidentally and a reversal sought in such collateral proceeding. The settled rule of law is that, jurisdiction having attached in the original case, everything done within the power of that jurisdiction, when collaterally questioned, is to be held conclusive of the rights of the parties, unless impeached for fraud. Every intendment is made to support the proceeding. It is regarded as if it were regular, and irreversible for error. In the absence of fraud, no question can be collaterally entertained as to anything lying within the jurisdictional sphere of the original case. Infinite confusion and mischief would ensue if the rule were otherwise. These remarks apply to the order of sale here in question. The county court had power to make it, and did make it. It is presumed to have been properly made, and the question of its [160 U.S. 531, 543]   propriety was not open to examination upon the trial in the circuit court.

These propositions are sustained by a long and unbroken line of adjudications in this court. The last one was the case of McNitt v. Turner, 16 Wall. 366.'

The principle was very clearly expressed by Mr. Justice Baldwin in Voorhees v. Bank, 10 Pet. 474:

The line which separates error in judgment from the usurpation of power is very definite; and it is precisely that which denotes the cases where a judgment or decree is reversible only by an appellate court, or may be declared a nullity collaterally, when it is offered in evidence in an action concerning the matter adjudicated, or purporting to have been so. In the one case, it is a record importing obsolute verity; in the other, mere waste paper. There can be no middle character assigned to judicial proceedings which are irreversible for error. Such is their effect between the parties to the suit, and such are the immunities which the law affords to a plaintiff who has obtained even an erroneous judgment or execution.'

This rule is recognized in the state of New York. In Kinnier v. Kinnier, 45 N. Y. 542, it was said:

'A judgment of a sister state cannot be impeached by showing irregularities in the form of proceedings or a noncompliance with some law of the state relating thereto, or that the decision was erroneous. Jurisdiction confers power to render the judgment, and it will be regarded as valid and binding until set aside in the court in which it was rendered.'

Even if, therefore, it was the opinion of Mr. Dickinson, the defendant's expert witness, that the chancellor of New Jersey erred in thinking that jurisdiction over the defendant personally was conferred by the service on him within the state of the subpoena under the original bill, and by the service on him, without the state, of a copy of the supplemental bill and of a rule to plead, such opinion does not support the finding of the trial court that, under the laws of the state of New Jersey, the decree sued on and offered in evidence was not binding upon the defendant personally. The opinion of the chancellor differed from that of the witness, and, what is more im- [160 U.S. 531, 544]   portant, his judgment was that, under the laws and practice of the state of New Jersey, the defendant was in his court, subject to its jurisdiction and bound by its decree.

It is contended on behalf of the plaintiff in error that, even if the defendant could not have been personally bound by a decree based on the supplemental bill, because the subpoena thereunder had not been served upon him within the state of New Jersey, yet that, as the defendant, after the entry of such a decree against him, appeared in the New Jersey court by counsel, and procured a modification of the decree, he thereby subjected himself to the decree as amended.

It is also claimed that, as he admits that he acquiesced in and ratified the decree, by accepting that portion thereof which relieved him from the contract of marriage, he cannot be heard to impeach the decree in dealing with the change thus caused in his marital relations by subjecting him to the payment of costs and alimony.

The fact that the defendant appeared and procured an amendment of the decree, and its enrollment in its final form, took place after the bringing of the present suit, and, to form the basis for the contention that he thereby subjected himself to the decree as amended, such fact ought, perhaps, to have been made to appear by an amended or supplemental petition. But as the amended decree was put in evidence by the defendant himself, and was treated by the New York courts as the final decree, whose effect they were considering, we shall regard the amended decree as the real ground of the plaintiff's action.

As the appearance of the defendant was not for the purpose of objecting to the jurisdiction of the court, but was rather in the nature of an appeal to its jurisdiction, and as the objection successfully made to the decree as originally enrolled was restricted to one of its recitals, and did not attack the decree in the respect that it adjudged that he should pay the costs and alimony, there is force in the view that he thereby waived any right to further object to the decree. At all events, he could not successfully attack the decree collaterally in a court of different jurisdiction, but his remedy, if any he had, would be by way of appeal. [160 U.S. 531, 545]   It is claimed by the defendant in error that to hold him personally bound by the decree for the payment of money would, in the circumstances of the present case, deprive him of his property without due process of law. This claim is based upon the assumption that the defendant had no hearing or opportunity to be heard.

As this record discloses that the defendant was served with process under the original bill, and appeared by counsel, and made answer, and was personally served with a copy of the supplemental bill and with an order to plead, and, after permitting himself to be defaulted, did appear by counsel and procure the vacation of the original decree and the enrollment of the decree, amended in accordance with his own motion, it may fairly be said that he both had an opportunity to be heard and was heard. His appearance by counsel under the supplementary proceedings was, not to object to the jurisdiction of the court, but to effect a change in the recitals of the decree on nonjurisdictional grounds. As before stated, we do not deem it necessary to consider the contention on behalf of the plaintiff in error that by such appearance the defendant estopped himself from alleging error in the decree when thus amended, but we think he certainly precluded himself from now contending that he has been deprived of his property within the meaning of the federal constitution.

As, then, the evidence of the defendant did not avail to show want of jurisdiction on the part of the chancery court of New Jersey to render the decree in question, and as it was admitted that the decree remained wholly unpaid, the plaintiff below was entitled to judgment.

The judgment of the supreme court is hereby reversed, and the case is remanded to the supreme court for further proceedings not inconsistent with the opinion of this court.




The US has one third of the world's prison population, two thirds of the world's rape convictions, three quarters of the world's lawyers, almost half of the world's Jews, and only five percent of the world's population.  At the same time that the number of American men behind bars increased ten fold, the clearance rate for murder plunged from 92% to 63% & the murder rate almost tripled, suggesting that three decades of affirmative action and feminism also gave us an oversupply of ignorant public servants.   An American man is 5 times more likely to be accused of rape and 12 times more likely to be convicted of rape than a Danish man, 14 and 35 times respectively than an Englishman, 3 and 18 times a Swedish man, 14% and 23 times a man in Chile, 5 and 26 times a Scottish man, 20% and 28 times a Dutch man, 10 and 30 times a Frenchman, 24 and 55 times an Irishman, 16 and 88 times a Japanese man, 10 and 88 times an Italian man, 54 and 125 an Indian man, and 13 and 1,470 a man in Singapore, yet American judges accept the feminist claim that "women don't LIE".

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U.S. Supreme Court

LYNDE v. LYNDE, 181 U.S. 183 (1900)


181 U.S. 183

CHARLES W. LYNDE, Plff. in Err.,

MARY W. LYNDE, Plff. in Err.,

Nos. 305 and 369.
Submitted November 5, 1900

This was an action brought May 26, 1898, in the supreme court for the county and state of New York, on a decree of the court of chancery of New Jersey, of December 28, 1897, by which it was ordered that the plaintiff was entitled to recover of the defendant the sum of $7,840 for alimony at the rate of $80 per week from February 11, 1896, to the date of the decree, and the further sum of $80 per week permanent alimony from the date of the decree, the said weekly payments to be valid liens on the defendant's real estate; that the defendant give bond to the plaintiff in the sum of $100, 000 to secure the [181 U.S. 183, 184]   payment of the sums of money directed to be paid; and to pay costs, taxed at $136.07, and a counsel fee of $1,000; and that on his default to pay any of the 'foregoing sums of money' or to give bond, application might be made for the issue of a writ of sequestration against him, or for an order appointing a receiver of his property, and enjoining his transfer thereof. The record showed the following material facts:

On November 18, 1892, the plaintiff in this action filed her bill for a divorce in the court of chancery of New Jersey, setting forth her marriage with the present defendant on March 25, 1884, in New Jersey, where she has since resided; and praying for a divorce from the bond of matrimony for desertion for two years, and for reasonable alimony. The defendant was not served with process other than by publication, and did not appear or answer the bill. On August 7, 1893, a decree of divorce was entered not mentioning alimony.

On February 10, 1896, the plaintiff, alleging that this decree was incomplete through the neglect of her counsel, filed a petition in that court, praying for an opening and amendment of the decree by allowing reasonable alimony. Upon this petition a rule to show cause was entered, and it was ordered that copies of the petition and affidavits accompanying it be served on the defendant.

In answer to the rule the defendant appeared generally, and filed an affidavit declaring that he was a resident of New York; 'that this defendant was by the decree of this court divorced from said petitioner' on August 7, 1893, 'and since that time has been married again to another woman;' 'that the decree for divorce in said cause was purposely drawn without providing for or reserving any alimony;' and 'that he is financially unable to pay alimony.'

On October 26, 1896, the court of chancery of New Jersey amended the decree of August 7, 1893, by ordering that the petitioner 'have the right to apply to this court at any time hereafter, at the foot of this decree, for reasonable alimony, and for such other relief in the premises touching alimony as may be equitable and just; and this court reserves the power to make such order or decree as may be necessary to allow and [181 U.S. 183, 185]   compel the payment of alimony to the petitioner by defendant, or to refuse to allow alimony.' 54 N. J. Eq. 473, 35 Atl. 641. On appeal this order was affirmed by the New Jersey court of errors and appeals. 55 N. J. Eq. 591, 39 Atl. 1114. Thereupon an order of reference, based on all prior proceedings and on notice to the solicitor for the defendant, was made by the court of chancery to a master to find the amount of alimony, if any, due to the plaintiff. Neither the defendant not his solicitor appeared at the hearing before the master; and on December 28, 1897, the court of chancery, confirming the master's report, made the decree now sued on.

That court on its being made to appear that a certified copy of this decree was personally served on the defendant, and that he refused to comply with said decree, ordered that a receiver be appointed to take possession of all the defendant's real and personal property in New Jersey, to apply it to the payment of the plaintiff's claim. The receiver, however, was 'unable to obtain possession of any property or assets of said defendant in the state of New Jersey;' nor had the defendant 'complied with said decree in any respect.'

The supreme court of New York decreed that the plaintiff was 'entitled to a judgment against the defendant, enforcing against said defendant the decree of the court of chancery of New Jersey, dated December 28, 1897,' and the order appointing a receiver, and enjoining the defendant from transferring his property; also that the plaintiff was entitled to judgment that the defendant pay her $8,976.07, 'being alimony, counsel fee, and costs, due under said decree,' and interest thereon from its date; also the 'sum $4,400, being the amount of weekly alimony which has accrued since said decree in accordance with the terms thereof,' and interest thereon; also $80 a week from the date of this decision, 'as and for permanent alimony,' bearing interest until paid; that he give bond 'in the sum of $100,000 to secure payment of the several sums of money aforesaid;' and that, if the defendant fail to comply with this decision, 'a receiver be appointed, ancillary to the receiver heretofore appointed by the court of chancery of New Jersey [181 U.S. 183, 186]   as aforesaid, of the real and personal property of the defendant within the state of New York.'

On appeal by the defendant to the appellate division, the decree was modified so as to allow the plaintiff to recover only $8,840 alimony, the amount declared by the New Jersey court as due and payable at the date of its decree. Thus modified, the judgment of the supreme court was affirmed. 41 App. Div. 280, 58 N. Y. Supp. 567.

From the judgment of the appellate division both parties appealed to the court of appeals, which affirmed the judgment of the appellate division. 162 N. Y. 405, 48 L. R. A. 679, 56 N. E. 979. Each party sued out a writ of error from this court.

Mr. George S. Ingraham for Charles W. Lynde.

Messrs. James Westervelt and Matthew C. Fleming for Mary W. Lynde.


Mr. Justice Gray, after stating the case as above, delivered the opinion of the court:

The husband, as the record shows, having appeared generally in answer to the petition for alimony in the court of chancery in New Jersey, the decree of that court for alimony was binding upon him. Laing v. Rigney, 160 U.S. 531 , 40 L. ed. 525, 16 Sup. Ct. Rep. 366. The court of New York having so ruled, thereby deciding in favor of the full faith and credit claimed for that decree under the Constitution and laws of the United States, its judgment on that question cannot be reviewed by this court on writ of error. Gordon v. Caldcleugh, 3 Cranch. 268, 2 L. ed. 436; Missouri v. Andriano, 138 U.S. 496 , 34 L. ed. 1012, 11 Sup. Ct. Rep. 385. The husband having appeared and been heard in the proceeding for alimony, there is no color for his present contention that he was deprived of his property without due process of law. Nor does he appear to have made any such contention in the courts of the state. His writ of error therefore must be dismissed.

By the Constitution and the act of Congress requiring the faith and credit to be given to a judgment of the court of another [181 U.S. 183, 187]   state that it has in the state where it was rendered, it was long ago declared by this court: 'The judgment is made a debt of record, not examinable upon its merits; but it does not carry with it, into another state, the efficacy of a judgment upon property or persons, to be enforced by execution. To give it the force of a judgment in another state, it must be made a judgment there, and can only be executed in the latter as its laws may permit.' M'Elmoyle v. Cohen, 13 Pet. 312, 325, 10 L. ed. 177; Thompson v. Whitman, 18 Wall. 457, 463, 21 L. ed. 897, 899; Wisconsin v. Pelican Ins. Co. 127 U.S. 265, 292 , 32 S. L. ed. 239, 244, 8 Sup. Ct. Rep. 1370; Bullock v. Bullock, 51 N. J. Eq. 444, 27 Atl. 435, and 52 N. J. Eq. 561, 27 L. R. A. 213, 30 Atl. 676.

The decree of the court of chancery of New Jersey, on which this suit is brought, provides, first, for the payment of $7,840 for alimony already due, and $1,000 counsel fee; second, for the payment of alimony since the date of the decree at the rate of $80 per week; and, third, for the giving of a bond to secure the payment of these sums, and, on default fault of payment or of giving bond, for leave to apply for a writ of sequestration, or a receiver and injunction.

The decree for the payment of $8,840 was for a fixed sum already due, and the judgment of the court below was properly restricted to that. The provision of the payment for alimony in the future was subject to the discretion of the court of chancery of New Jersey, which might at any time alter it, and was not a final judgment for a fixed sum. The provisions for bond, sequestration, receiver, and injunction, being in the nature of execution, and not of judgment, could have no extraterritorial operation; but the action of the courts of New York in these respects depended on the local statutes and practice of the state, and involved no Federal question.

On the writ of error of the wife, therefore,

The judgment is affirmed.

Ratio of US Rape Reports To Other Countries

Ratio of US Rape Convictions To Other Countries





















































Even though only one American man is convicted out of every twenty rape accusations, scientific studies conducted by the FBI reveal that one third of the men convicted and in prison for rape whose DNA was tested *after* the conviction don't match the DNA evidence from the crime scene.  Up to two hundred police officers in Los Angeles are now facing prison terms for telling LIES which led to three thousand false convictions in the "Rampart Invesigation", and critics are claiming that this is just the tip of the iceberg.  Thirty one of the men executed in the US and twenty one men sentenced to the death chamber in Illinois have now been proven innocent, prompting Illinois to suspend the death penalty.


Fourty four child sexual abuse convictions have been or are being overturned in Wenatchee, Washington, and visiting Judge Friehl discovered that even the defense attorneys had been misled by the mass hysteria which surrounded this witch hunt.  The McMartin Pre-school trial led to lengthy false imprisonments of numerous innocent citizens, traumatized dozens of children, cost taxpayers eight million dollars, and produced not one single shred of evidence of child sexual abuse.  The Amirault Case in Massachussetts relied on testimony from children that not even other children could believe, yet the jury decided that the innocent day school workers were guilty of ripping children's entrails out and laying them out on the table, and then replacing the entrails and sewing the wounds up so completely that no scars could be detected.  In order to prevent the sexual abuse of children in a peaceful church in Waco, Texas, Janet Reno fried 80 innocent men, women, and children and then imprisoned the survivors so they couldn't tell the truth about it.


Sexual experimentation that is considered child's play in most of the civilized world is a crime in the US worthy of imprisoning our 14 year old youth for 25 years, while lying, perjury and adultery by adult public servants which would cause their removal from office in most of the civilized world is considered routine, even sexy, in the US.  Yet not even one scientific study can detect that the majority of our fourteen year old boys did a nickel's worth of long term psychological damage to their purported victims, as we the taxpayers destroy their lives anyway and add the tab for the $7.5 million cost to imprison them for half of their life to our already out of control debts.  Adultery by public servants encourages widespread adultery and produced a society in which one out of five children born to intact families aren't even genetically related to the husband--a national tragedy of incalculable proportions.

In 1848, the feminist complaint was: "He has made her, morally, an irresponsible being, as she can commit many crimes, with impunity, provided they be done in the presence of her husband. In the covenant of marriage, she is compelled to promise obedience to her husband, he becoming, to all intents and purposes, her master - the law giving him power to deprive her of her liberty, and to administer chastisement."
In 1896, Justice Gray unilaterally "corrected" this grievance by saying: "Alimony does not arise from any business transaction, but from the relation of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdicrion. Generally speaking, alimony may be altered by that court at any time, as the circumstances of the parties may require."


What a difference a half century makes.    Or did it?  Did public opinion change, or did judicial activism merely take over the country?  Note the seven sleights of hand used by Justice Gray in this one single paragraph:

bullet Our civilization is suddenly ruled by "natural law" rather than God's law.
bullet There is no reference to the "legal duty" Justice Gray asserts.
bullet Alimony, which is never paid to a wife, only to an ex-wife, is due because of a duty to support a *wife*.
bullet The decision making authority of the main party to that obligation, the husband, is displaced by courts.
bullet The amount of that obligation is not determined at the time the husband takes on that "duty".
bullet The right of both husband and wife to contract with each other is eliminated.
bullet A known entity, Christian marriage, is displaced by unspecified, quixotic, secular court rulings and case history.


If you or I or a corporation were to try to conduct business this way, we would end up in prison for fraud.  Because the courts did this under the color of law, it is considered "legal" even though it is a violation of God's law of incomprehensible proportions and even though it was done without legislative authority.  Cows and apes and monkeys live by natural law--civilized societies live by God's law.  For Justice Gray to destroy civilization with the stroke of a pen using such heinous sleights of hand can be explained only by the adverse influence of the Talmud on his moral philosophy.


Is there any wonder that 50 million American men now refuse to enter into such a non-contract, leaving an unprecedented number of pregnant American women at the altar, placing almost half of the nation's children in fatherless households?  Is it impossible for Americans to understand how this led to the fifty fold increase in the divorce rate, and the ten fold increase in the murder and violent crime and incarceration rates?    Did Justice Gray not know this would happen to American society when he did this, that the US would end up with one third of the world's prison inmates even though we have only 5% of the world's population, that he started a *war* on the American public which caused the "war on drugs", the "war on poverty", the "war on illiteracy", the "war on domestic violence", the "war on child abuse", the unjust "war on Vietnam", the unjust "war on Yugoslavian Christians", most of which were unprecedented and all of which were unnecessary for the two thousand years prior to his sleight of hand?


The mainstream media reports that the cost to imprison an American is $25,000 per year, and warns us that having two million Americans in prison is a $50 billion drain to our economy.  But this is off by more than an order of magnitude, because the real cost must include the 2,476,000 justice system employees required to police, investigate, accuse, try, convict, imprison, guard, feed, and support more men than are in the Russian Army.  When the government hires just one employee to work for the justice system, it removes one worker from the productive side of the economy, and requires the taxes paid by two and a half workers from the productive side of the economy to pay his salary and benefits.  This means that each of those 2,476,000 employees really costs the economy 3 1/2 employees, for a total loss to the economy of 8,666,000 man years.  Add to that the two million prison inmates who are removed from the workforce and the total cost (exclusive of their and their families' increased welfare, social security, AFDC, housing, and education costs) is 10,666,000 man years, which is 8.5% of the US work force.  With a GDP of $9 trillion, this is the equivalent of $765 billion, or $382,500 per inmate per year, which is more than 15 times greater than these media estimates.

If just 10% (a very low figure) of the $360 billion cost of welfare, the $560 billion cost of social security, the $720 billion cost of education, $22 billion cost of housing is attributable to families of these 2 million imprisoned citizens, then another $166 billion must be added to this $765 billion, for a total of $931 billion, which is $465,500 per inmate per year, more than 18 times greater than these media estimates.  How can it be explained that not one single mediot took the time to do such a basic sanity check on this false $25,000 figure?


It gets worse! The 1992 direct cost to crime victims, including losses from property theft or damage, cash losses, medical expenses, and amount of pay lost because of injury or activities related to the crimes of rape, robbery, assault, personal and household theft, burglary, and motor vehicle theft, was $17.6 billion.  69% of this loss was covered by insurance, so the net loss after insurance reimbursement was $5.5 billion.  With the 20% decrease in most crime rates since 1992, this figure is likely to be$4.4 billion in 2000.  If the economic loss due to murder is estimated at $200,000 each, then the estimated 15,000 murders predicted for 2000 will cost crime victims another $3 billion, or $1 billion after insurance payments, for a total predicted economic loss to crime victims of $5.4 billion in the year 2000.  http://www.ojp.usdoj.gov/bjs/pub/ascii/coctv.txt

The cost of "preventing" crime in 2000 will thus exceed the net loss to crime victims by 172 times.  The average cost of crime for each man, woman, and child in the country will be $20 each, but the average cost of crime "prevention" will be $3,448 each.  The man who will serve 30 years in prison for getting a "third strike" for stealing a $50 power drill will cost his crime victim $15 after insurance reimbursement, but he will cost taxpayers almost $14 million.

  Total Annual Cost Annual Cost Per Capita Annual Cost Per Inmate Cost As Percent of GDP
Annual Cost To "Prevent Crime" $931 billion $3,448 $465,500 10.3%
Economic Loss To Crime Victims After Insurance Reimbursement $5.4 billion $20 $2,700 0.06%
Cost/Benefit 172X 172X 172X 172X


Not only does the evidence not support the theory that such a high incarceration rate reduces crime, but the international and state to state data shows a direct correlation between high crime rates and hich incarceration rates: those countries and states with high crime rates also have high incarceration rates, and those with low crime rates also have low incarceration rates.  There are only three possible Scenarios:

  1. One or more other factors influence both rates.
  2. Increasing the incarceration rate causes an increase in the crime rate.
  3. A combination of both.

Mixing non-violent, non-criminal drug users in prisons with hard core criminals and violent men is sure to increase all types of crime rates, which supports Scenarios A and C above.  It is known from the literature that incarceration increases fatherlessness, which increases crime, which increases incarceration, which supports Scenarios B and C above.  But if the average prison sentence is three years, then 2 million prison inmates represents only 2% of the 99 million victimizations over that three years, and it's doubtful that a 2% reduction in criminals would translate into a 2% reduction in crime.  Because of the elasticity of criminals [read: the removal of many criminals could easily result in their immediate replacement by fellow criminals moving up the ranks], even if half of all of those perpetrators of these annual 33 million crimes were imprisoned, it would be surprising if the decrease in crime could be as much as 10%.  At current costs, imprisoning these 16.5 million criminals would cost $7.7 trillion, and the maximum economic benefit resulting from a 10% reduction in crime, after insurance reimbursement, would be a mere $540 million.  Such an aggressive crime-fighting campaign would thus cost 14,259 times as much as it would save the victims of crime--not exactly a win/win plan.

The Christian Party stands for an immediate cease fire to this *war* on American citizens by their own government, the immediate recantation of Justice Gray's adverse legal philosophy, and the instantaneous restoration of God's law.